1. Law and Public Policy
4/29/2004
Dorothy Sherwood, M.D.

2. Access to Medical Records of Deceased
To whom should a physician release the medical records of a deceased patient?  To his parents?  To his brother? To his wife?  To all three?

3. Access to Medical Records of Deceased
A "personal representative" is someone specifically named by the Texas Probate Code as having the authority, when appointed as such by the probate court, to transact business on the part of the estate.  For example, the person named as executor in the deceased's will has first preference. 

4. Access to Medical Records of Deceased
If no qualified executor is named in the will, the surviving spouse has preference in administering the estate.  A person who will receive money or property from the estate has next priority.  Next of kin have next priority.  Creditors of the deceased may even become personal representatives in certain rare instances. 

5. Access to Medical Records of Deceased
When someone seeks the records of a deceased patient they must establish that they are a personal representative of the deceased by showing either letters testamentary or letters of administration, or evidence that they are involved in "informal probate" or "small estates" such as an affidavit of heirship.

6. Access to Medical Records of Deceased
Exceptions"
The release of confidential information - including medical records - to "individuals, corporations, or governmental agencies involved in the payment or collection of fees for medical services rendered by a physician." 

7. Access to Medical Records of Deceased
You have thirty days to respond to the release request or provide a written reason why not, and you may charge a fee for preparation and release of the records

8. HIV Consent
Texas law provides that a person (a physician) may require another person to have an HIV test if a medical procedure is to be performed on the person that could expose health care personnel to HIV infection, and there is time to receive the test result before the procedure is conducted.

9. HIV consent
Invasive Procedures: surgical entry into tissues, cavities or organs, or repair of major traumatic injuries. 
Angiographic
Bronchoscopic
Endoscopic
Obstetrical procedures

10. HIV Consent
This means that the physician may "require” the HIV test as a condition of performing  the procedures. Thus, some evidence of the patient's consent is still required

11. HIV Consent
The Texas legislature, in amending the Communicable Disease Prevention and Control Act in 1989, enacted a provision which prohibits the performance of an HIV test without obtaining the informed consent of the person to be tested.

12. HIV Consent
  However, consent does not have to be written if there is documentation in the medical record that the test has been explained and the consent has been obtained. 

13. HIV Consent
The Texas Health & Safety Code provides that a person who signed a general consent form for the performance of medical tests or procedures is not required to sign a specific consent form relating tests to determine HIV status

14. HIV Consent
Exposure to Health Care Worker: No "specific consent" is necessary
There must be a "written infectious disease protocol"
The person is notified of the result
The name of the person tested is destroyed after the test. 

15. HIV Consent Disclosure of HIV results:
Texas law allows disclosure of a positive HIV test result to the patient's spouse without the patient's consent.
Otherwise, it requires patient’s written consent to release the results.

16. HIV Consent
As a result of legislative action in 1995, physicians are now required to take blood samples for syphilis & HIV testing at the time of the first examination and visit, and within 24 hours of delivery.

17. HIV Consent
 In addition, the physician must, before conducting the test, (1) provide certain written information developed by TDH, and (2)inform the woman that the test is confidential but not anonymous.
The test can be refused by the woman.

18. When Can Minors Consent to Their Own Medical Treatment?
The Family Code lists instances where a minor child can consent to certain types of medical treatment on their own.  This list is as follows:

19. When Can Minors Consent to Their Own Medical Treatment?
A minor on active duty with the armed forces of the United States can consent to any medical treatment.

20. When Can Minors Consent to Their Own Medical Treatment?
A minor can consent to counseling for suicide prevention, chemical addiction or dependency, or sexual, physical or emotional abuse

21. When Can Minors Consent to Their Own Medical Treatment?
A minor can consent to examination and treatment for addiction, dependency, or any other condition related directly to drug or chemical use.

22. When Can Minors Consent to Their Own Medical Treatment?
A minor who is unmarried and pregnant can consent to treatment of pregnancy other than abortion

23. When Can Minors Consent to Their Own Medical Treatment?
A minor can consent to diagnosis and treatment of any infectious, contagious or communicable disease which is reportable to the Texas Department of Health.

24. When Can Minors Consent to Their Own Medical Treatment?
A minor who is 16 years of age or older, resided apart from his or her parents, and manages his or her own financial affairs, regardless of the source of income, can consent to any medical treatment.

25. When Can Minors Consent to Their Own Medical Treatment?
Note that the Family Code does not appear to give minors the right to consent to contraceptives or other prescription birth control devices.

26. Terminating A Patient Relationship
Abandonment of a patient may result in civil liability for the physician.
Abandonment is defined as "the unilateral severance of the professional relationship without reasonable notice at a time when there is still the necessity of continuing medical attention.”

27. Terminating A Patient Relationship
A physician may terminate a patient for any reason by informing that individual orally and in writing.
The physician is not required to provide a reason for termination.
There must by coverage for emergent treatment for a ‘reasonable period of time.’
Documentation of the oral conversation, a copy of the letter, and a copy of the receipt of the letter should be in the chart.

28. Terminating A Patient Relationship
Physicians have a fiduciary or trust responsibility to act only in the best interests of their patients. The physician is judged to have superior knowledge.
This must be kept in mind whenever you have a question regarding your obligation to provide care for a patient.

29. Terminating A Patient Relationship
I lost contact with a patient I treated several years ago.  If the patient calls for an appointment, am I still obligated to see the patient?

30. Terminating A Patient Relationship
If you do not want to resume treating the patient, and if the patient does not now need emergent treatment, the patient should be informed that you have not agreed to continue as their physician.

31. Terminating A Patient Relationship
A patient will not pay an outstanding balance for services rendered. Does that mean the physician-patient relationship has been terminated?

32. Terminating A Patient Relationship
Remember that medical malpractice law holds physicians to a higher standard of care than an ordinary business person.
Physicians have historically held themselves to a higher level of conduct.

33. Terminating A Patient Relationship
A physician should not deny an established patient an appointment or cancel an appointment because of an unpaid balance.
It is appropriate to warn a patient with an unpaid balance that termination is possible if the matter is not rectified.

34. Terminating A Patient Relationship
A patient of mine left the hospital "against medical advice." Later the patient wants to make an appointment with my office. Am I obliged to treat the patient?

35. Terminating A Patient Relationship
If the physician-patient relationship has not been terminated by the acts of either party, there is still an obligation to the patient.

36. Terminating A Patient Relationship
I was "deselected" by a managed care plan. Do I still have to provide care to managed care plan enrollees even though I may not be reimbursed for that care?

37. Terminating A Patient Relationship
Insurance status has no bearing on whether abandonment has occurred, so enrollees are still patients until the physician-patient relationship is properly

38. HIPPA
President Clinton signed into law the Health Portability and Accountability Act (HIPAA) on August 21, This act was designed to:
•  Ensure health insurance portability (Title I)
•  Reduce health care fraud and abuse
•  Guarantee privacy and security of health information
•  Enforce standards for health information.

40. HIPPA
Unique Health Identifiers HIPAA regulations will provide for National Identifiers for providers, employers, health plans and individuals.

41. HIPPA
Privacy Legislation Privacy addresses the rights of an individual, the procedures for exercising these rights and the disclosure and use of individually identifiable health information

42. HIPPA
Uses and disclosures of protected health information: general rules
Consent for uses or disclosures to carryout treatment, payment, and    health care operations
Uses and disclosures for which consent, an authorization, or opportunity    to agree or object is not required

43. HIPPA Notice of privacy practices for protected health information.
Rights to request privacy protection for protected health information.
Access of individuals to protected health information.
Accounting of disclosures of protected health information.